IN THE CASE OF:	  

		BOARD DATE:	  6 January 2015

		DOCKET NUMBER:  AR20140007307 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his undesirable discharge to a general discharge.

2.  The applicant states:

* he could not recognize commands due to his hearing disability
* he was accepted in the Army with hearing disabilities that progressed in severity during his active duty service

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was inducted into the Army of the United States on 25 April 1956.  His induction physical examination is not available for review.  He completed his training and was awarded military occupational specialty 111.10 (Light Weapons Infantryman).  On 25 November 1957, he was honorably discharged for enlistment in the Regular Army.  He enlisted in the Regular Army on 26 November 1957 for 3 years.

3.  A Standard Form 600 (Chronological Record of Medical Care) shows he was treated for or diagnosed with the following conditions between 22 April 1957 and 4 February 1959:

* arthritis
* back pain
* gonorrhea
* laceration of left palm
* right knee edema
* possible ganglion cyst
* sore thumb
* tonsillitis
* infected finger
* sore right arm
* knot under right arm
* laceration of left side of nose
* chest pains
* influenza
* urethral discharge
* pharyngitis

4.  On 18 February 1959, he was convicted by a summary court-martial of unlawfully peering into windows of occupied guest house rooms and breaking restriction.  He was sentenced to confinement at hard labor for 1 month, forfeiture of $65.00 pay for 1 month, and reduction to the rank/grade of private/E-1.  On 18 February 1959, the convening authority approved the sentence.

5.  On 13 March 1959, his commanding officer recommended his elimination from the service under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Undesirable Habits and Traits of Character) and requested a board of officers to determine whether the applicant should be discharged prior to his expiration of term of service date.  The commanding officer cited the following reasons for the recommended action:

* evidence of habits and traits of character manifested by antisocial or amoral trend
* evidence of habits and traits of character manifested by misconduct

6.  On 18 March 1959, a board of officers convened.  The board recommended his discharge for undesirable habits or traits of character under the provisions of Army Regulation 635-208, due to evidence of misconduct which rendered retention in the service undesirable, and the issuance of an undesirable discharge.

7.  On 25 March 1959, the separation authority approved the recommendation.

8.  On 2 April 1959, he was discharged under the provisions of Army Regulation 635-208 and assigned a separation program number (SPN) of 387 (habits or traits of character manifested by misconduct).  He completed 2 years, 10 months, and 18 days of total active service with 21 days of lost time.

9.  There is no evidence that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel having undesirable habits and traits of character.  A recommendation for discharge because of undesirability would be made in the case of an enlisted person who:

	a.  gave evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct;

	b.  possessed unclean habits, including repeated venereal infections;

	c.  repeatedly committed petty offenses not warranting trial by court-martial;

	d.  was a habitual shirker;

	e.  was recommended for discharge by a disposition or other board of medical officers because he possessed a psychopathic (anti-social) personality disorder or defect, or was classified as having "no disease" by the board, and his record of service revealed frequent disciplinary actions because of infractions of regulations and commission of offenses, or it was clearly evident his complaints were unfounded and were made with the intent of avoiding service; or

	f.  demonstrated behavior, participated in activities, or associations which tended to show that he was not reliable or trustworthy.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he could not recognize commands due to his hearing disability; however, there is no medical evidence of record and the applicant provided no evidence which shows he was diagnosed with a hearing problem, prior to his discharge in 1959, which made him unable to distinguish between right and wrong.

2.  His record of service during his last enlistment included a summary court-martial conviction of unlawfully peering into windows of occupied guest house rooms and breaking restriction as well as 21 days of lost time.  As a result, his record of service was not satisfactory.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x_____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________x___________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20140007307



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ABCMR Record of Proceedings (cont)                                         AR20140007307



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